RESULT: The Court grants leave to the Applicant to appeal to this Court directly from the High Court.

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES

1. Jurisdiction

This determination relates to an application by the applicant in the underlying proceedings ( “Mr. Wansboro”) for leave to appeal, under Art. 34.5.4 of the Constitution, directly from the judgment of the High Court (Faherty J.) delivered on the 16th June, 2017. The order appealed against was also made on the 16th June, 2017, and perfected on the 6th July, 2017. As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interest of justice necessary that there be an appeal to this Court. In addition because this is an application for leave to appeal directly from the High Court it is also necessary that it be established that there are “exceptional circumstances warranting a direct appeal” to this Court.

The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave a having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

2. The Proceedings

The issue in the underlying proceedings arose out of the decision of the High Court (Moriarty J.) in Moore & Ors v. DPP (2006) IEHC 434. In that case it was determined that the provisions of ss. 99(9) and (10) of the Criminal Justice Act 2016 were invalid having regard to the Constitution. Those sections were concerned with the activation of suspended sentences.

Mr. Wansboro maintained that, in the particular circumstances of his case and having regard to the decision in Moore, an order made by the Circuit Court requiring him to serve certain re-activated sentences was itself invalid.

3. The Order appealed against

The High Court rejected Mr. Wansboro’s claim for the reasons set out by Faherty J., in her judgment (Unreported, High Court, Faherty J. 16th June 2017). It is as against almost the entirety of that judgment (save for one minor matter) that Mr. Wansboro seeks to appeal directly to this Court.

4. The Contentions of the Parties

The notice of application for leave to appeal together with the response is published along with this determination. It is not, in those circumstances, necessary to set out in full detail the contents of those documents. For the purposes of this determination it is sufficient to summarise the basis upon which the applicant suggests that the constitutional threshold for leave to appeal has been met.

As appears from his notice of application Mr. Wansboro contends that an issue of general public importance arises having regard to the fact that the section which led to the re-activation of his case was found, subsequently, to be unconstitutional. He maintains that this gives rise to important questions concerning the extent, if any, to which orders made under ss. 99(9) and (10) can remain in force.

In relation to his application for leapfrog leave it is suggested that there are now two decisions of the Court of Appeal which follow the same reasoning as that adopted by Faherty J. in this case. In those circumstances it is suggested that no useful purpose would be served in requiring Mr. Wansboro to first appeal to the Court of Appeal.

The State respondents, on the other hand, argue that the decision in this case, and indeed the decisions of the Court of Appeal to which reference has already been made, involve the application of settled legal principles.

5. Discussion

As is clear from a range of determinations made by this Court since the 33rd Amendment to the Constitution came into force, the constitutional function of this Court is no longer that of an appeal court designed to correct alleged errors by the trial court. Where it is said that the High Court has simply been in error in some material respect the constitutional regime now in place confers jurisdiction to correct any such error as may be established on the Court of Appeal. Rather the text of the Constitution now in place makes clear that an appeal to this Court, whether directly from the High Court under Art. 34.5.4 or from the Court of Appeal under Art. 34.5.3, requires that it be established that the decision sought to be appealed against involves a matter of general public importance or that it otherwise is in the interest of justice necessary to allow an appeal to this Court. It will rarely be necessary in the interest of justice to permit an appeal to this Court simply because it is said that the lower court was in error. An appeal to the Court of Appeal provides the appropriate remedy for any error made by the High Court. Likewise a party which has had the opportunity to have the decision of the High Court reviewed by the Court of Appeal will have had the benefit of having been able to put its case both at trial and on appeal. Without more the interests of justice will not require a further review on appeal to this Court.

Against that background it is necessary to address the basis on which it is said that the constitutional threshold is met in this case.

The Court is satisfied that this appeal does raise an issue of general public importance. It is correct that the settled case law of the Irish Courts makes clear that it does not necessarily follow from a declaration of unconstitutionality that all orders made under the provision which is rendered invalid by such a declaration must themselves be taken to have no effect. However, the precise circumstances in which orders made under impugned legislation can continue to have effect is both a matter of considerable importance and one whose application to the particular circumstances of a category of case may, in some instances, be debatable. On that basis the Court concludes that the general constitutional threshold has been met.

However, there is a further important issue raised on this application which is as to whether it is appropriate to grant leapfrog leave in all the circumstances of this case.

6. Leapfrog Leave

This Court has already given some consideration to the general principles applicable to the question of whether it is appropriate to grant leapfrog leave. It is, of course, the case that in order for leapfrog leave to be granted the general constitutional threshold of general public importance or interests of justice must be met. However, it is also necessary, in the case of leapfrog leave, that it be established that there are “exceptional circumstances” which would justify a direct appeal.

This issue has been considered in a number of previous determinations of this Court including Barlow & ors v. Minister for Agriculture, Food and Marine & ors (2015) IESCDET 8, Craydon Fishing Company Ltd v. Sea Fisheries Protection Authority & ors (2016) IESCDET 77, and Re Adoption Acts, J.B. (a minor) & ors v. Attorney General (2017) IESCDET 25. It has been made clear that the Constitution now regards an appeal to the Court of Appeal as being the norm and therefore further requires that there be some particular feature of the appeal which would warrant departing from that norm and allowing a direct appeal to this Court. (See for example Fox v. Mahon (2015) IESCDET 2). It is not possible to give an exhaustive list of all of the circumstances which might provide such exceptional circumstances.

However, a starting point has to be a consideration of the advantages, even in a case where it might be considered likely that there would ultimately be an appeal to this Court, of an intermediate appeal to the Court of Appeal. The issues raised in the High Court may be many and varied and thus the issues which might potentially arise on appeal may themselves be numerous. It follows that, in at least some cases, it would be reasonable to expect that the issues which might ultimately come before this Court on a further appeal from the Court of Appeal would be narrower and more focused than would be the case in the event of a direct appeal.

The new constitutional architecture, of course, requires this Court to concentrate on important issues. The purpose behind that requirement is, amongst other things, that it is more likely that this Court will be able to bring clarity to the important legal issues raised if it is possible to focus on those issues by excluding peripheral or additional questions which do not impact on the important questions which justify an appeal to this Court. Thus, the advantage of an intermediate appeal in many cases may well be that it would allow for a much greater focus in the event that the case ultimately comes to this Court.

In addition, the proper resolution of even those cases which may involve only a small number of issues is likely to benefit by virtue of the increased focus which would be brought about by the case not only having been heard at first instance but also on appeal prior to a final determination by this Court.

The extent to which it might be perceived that there would, for reasons such as those which the Court has just identified, be a significant advantage in requiring an intermediate appeal will, of course, vary from case to case. At one end of the spectrum will lie cases involving a very large number of issues, including, perhaps, questions of fact, which will undoubtedly be narrowed down by an appeal to the Court of Appeal. At the other end of the spectrum there may be cases which are clearly narrow in focus however important the issues raised may be. In such cases it may be easy to predict that an appeal to this Court will not run in any significantly different way whether the appeal is brought direct from the High Court or following an intermediate appeal to the Court of Appeal. It has been commented that such cases are going to “look the same” whether going through an intermediate appeal or coming directly to this Court (see Barlow). While it is true that, in such cases, there will always be value in obtaining the views of the Court of Appeal, the weight to be attached to the presumption in favour and advantages of an intermediate appeal may be significantly reduced.

On the other side of the equation there may be particular factors which point sufficiently strongly in favour of allowing a direct appeal to counterbalance the presumption in favour and advantages of an appeal to the Court of Appeal. Without being exhaustive some of the factors which may be identified are as follows:-

(a)Costs:

Clearly litigation places a significant financial burden on all parties. Having to finance two appeals instead of one is a factor which should be taken into account. Clearly this factor cannot be decisive as otherwise a leapfrog appeal might be justified in the great majority of cases. However, where the perceived advantages of an intermediate appeal to the Court of Appeal are not particularly strong in the circumstances of the case in question then such factors may carry some weight.

(b)Speed:

Obviously all litigants are entitled to have their proceedings brought to an end in as timely a fashion as possible and all Courts are prepared to afford appropriate priority to cases involving urgency. However, with the best will in the world, it is inevitable that two appeals will prolong the litigation. This may be an unfortunate necessity in many cases. The fact that proceedings involving a second appeal will take longer can not, therefore, of itself, provide exceptional circumstances for if it could then leapfrog leave would be justified in almost all cases. However, there may be situations where the particular urgency of the case concerned may justify additional weight being attached to this factor which may ultimately influence the final determination on whether leapfrog leave is appropriate.

(c)Effect on Other Cases:

Apart altogether from the urgency which may arise in the particular case in question it may also, in certain circumstances, be appropriate to have regard to the need for a speedy determination of a legal issue which has the potential to affect many other cases and where uncertainty as to the law may be causing difficulties for other Courts.

(d)Will the issue still be alive:

There may be cases which may or may not involve an issue of general public importance depending on how other issues in the case are determined. In such cases an intermediate appeal may be of considerable importance for the issue which might meet the constitutional threshold may fall away.

In addition to those factors it must also be recognised that there may be particular aspects of an application for leave which should be afforded weight and may, in certain circumstances, justify departing from the default position.

In that context it is appropriate to note a category of application for leapfrog leave in respect of which there have been a number of determinations of this Court. As this case does not fall into the category in question the Court does not propose to make any definitive ruling in relation to such cases but nonetheless, for completeness, wishes to draw attention to the issue. The category of case may conveniently be referred to as “certificate” cases being proceedings where an appeal from the High Court to the Court of Appeal cannot be pursued unless the High Court has issued a certificate permitting such an appeal (such as, for example, under s. 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000). The effect of the new constitutional architecture, which has been in place since the coming into force of the 33rd Amendment, on such cases was addressed by this Court in the joint judgment delivered by Clarke J. and O’Malley J. in Grace & anor v. An Bord Pleanala & ors (2017) IESC 10. However, the question remains as to the extent to which the fact that a party may not be able to appeal to the Court of Appeal by reason of the absence of a relevant certificate may provide the “exceptional” circumstances justifying a leapfrog appeal to this Court. That is an issue which the Court proposes to address in detail in a subsequent determination if and when the issue clearly arises. The Court has already indicated, in the application for leave in Grace (Grace & anor v. An Bord Pleanala & ors (2016) IESCDET 28), that the impossibility of pursuing an appeal to the Court of Appeal in a case where this Court was satisfied that the general constitutional threshold had been met may, at least in some cases, provide the appropriate exceptional circumstances justifying a leapfrog appeal.

Having dealt with the general principles it is next necessary to apply those principles to the circumstances of this case.

7.The Circumstances of this case

The ground relied on in this case may fall partly into category (c) but also may involve, to an extent, the particular feature relied on on behalf of Mr. Wansboro being the fact that the Court of Appeal has clearly taken a view on the issues on this case. It follows that it would be unlikely that Mr. Wansboro could succeed on his appeal before the Court of Appeal for that Court would, quite properly, be highly likely to follow its own jurisprudence and decide the appeal against him. Thus, what might normally be gained by an intermediate appeal would be much less likely to arise in the circumstances of this case. In addition this Court will, in any event, have available to it the case law of the Court of Appeal and thus will know the basis on which the Court of Appeal has been persuaded that cases such as that made by Mr. Wansboro should not succeed. The weight to be attached, therefore, to the default position and the advantages of an intermediate appeal is much less in the circumstances of this case.

This case is likely to “look the same” whether coming to this Court directly from the High Court or through an intermediate appeal to the Court of Appeal. In addition, for the reasons already identified, this Court is satisfied that the basic constitutional threshold is met. Nor are there any particular reasons to suspect that the same grounds which Mr. Wansboro wishes to urge on this Court would not remain open to him notwithstanding an unsuccessful appeal to the Court of Appeal.

In addition it appears to this Court that it is of considerable importance to bring as much clarity as possible to the question of the effect of the decision in Moore on pre-existing orders made under the sections which were struck down in that case. There would be a considerable advantage to obtaining that clarity, for the benefit of all potential litigation in this area, as quickly as possible.

For those reasons the Court is satisfied that it is appropriate, in the circumstances of this case, to grant leapfrog leave.

8.Conclusion

The Court, therefore, grants leave to appeal under Art. 34.5.4.

The Court proposes, in principle, to allow Mr. Wansboro to pursue each of the grounds of appeal set out at paragraph 6 of his notice of application for leave to appeal. However, it will be open to the case management Judge to refine those grounds in the course of the case management process not least for the purposes of ensuring the maximum level of focus and precision consistent with ensuring that Mr. Wansboro is able properly to pursue the issues of general importance identified in this determination.